Retirement FAQs

Quickly find the answers you’re looking for as it pertains to dividing Retirement in North Carolina.


Why is my spouse entitled to any of my retirement?

Why is my spouse entitled to any of my retirement?

Many people seem baffled by this – they wonder why their spouse is entitled to take any portion of their retirement plan. The reality is that a retirement account is subject to division through equitable distribution just as any other asset or liability is. What you earn during your marriage is considered marital property and subject to division. Simply put, any asset or liability that...

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Does it matter if my spouse’s retirement is a defined benefit or a defined contribution plan?

Does it matter if my spouse’s retirement is a defined benefit or a defined contribution plan?

Yes. This matters when it comes to calculating the value of the plan. Equitable distribution is a four step process – First property and liabilities are identified, then they are classified as marital, separate, or divisible. Next, property must be valued – the fair market value as of the date of separation is the applicable value to assign any asset or liability. Finally, the property...

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How can I divide my retirement without taking a tax hit?

How can I divide my retirement without taking a tax hit?

If you simply take a withdrawal from your retirement account to provide your former spouse with a portion of it, incident to divorce, it will create a tax event. There are ways to divide the account, however, without experiencing a tax penalty. If you are dividing an IRA you’ll need to make sure that the transaction is structured so that you are not taking a...

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Is Military Retirement Subject to Division?

Is Military Retirement Subject to Division?

Military retirement is fair game in equitable distribution. Any retirement earned during the marriage is considered marital property however there is a unique limitation with regard to a non-military spouse receiving direct payment from the federal government. In order to receive direct payment, the “10/10” requirement must be met; the spouses must have been married 10 years or more during which the military-spouse had at...

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What is a QDRO?

What is a QDRO?

QDRO is shorthand for “Qualified Domestic Relations Order,” the legal instrument that allows for a person to assign rights in a retirement account subject to ERISA to another person. If you are splitting a 401(k), pension, or other qualified plan you will need to obtain a QDRO in order to access the funds without incurring a tax penalty. Simply making a withdrawal from such a...

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Could my spouse get more than half of my retirement plan?

Could my spouse get more than half of my retirement plan?

Yes, your spouse could in fact take a portion of your retirement account that is greater than 50%. There are several scenarios that could point to this sort of a distribution. First, while there is a preference in North Carolina for property to be divided on a 50/50 basis, there are many factors that a judge can consider that may result in an unequal division....

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Who drafts the QDRO?

Who drafts the QDRO?

QDROs are complex, and mistakes can be costly. As such, it is advised that an attorney draft the QDRO. Typically the spouse who is receiving the funds will be the spouse required to pay the legal fees necessary to obtain the QDRO, and it will be that spouse’s attorney who does the legwork in creating and filing the QDRO. Because obtaining a QDRO will increase...

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Can we agree to each keep our own retirement account?

Can we agree to each keep our own retirement account?

Yes. If you are able to address your equitable distribution issues through a separation agreement, the agreement can be molded to best suit you and your former spouse’s needs. You may prefer to each keep your retirement plans in tact, and offset what you may owe by trading other assets. Or, you may simply agree to not even include your retirement savings in your equitable...

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